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Winter 24 Newsletter

DOT Oral Fluid Testing

DOT Summary of Changes to Part 40 Final Rule

On June 1, 2023, the Department of Transportation (DOT) approved the use of oral fluid testing in their drug testing program. However, implementation is subject to the certification of at least two labs by the Department of Health and Human Services (HHS).

Even though DOT approved oral fluid testing, you can’t use it yet.  However, you do need to begin to consider how/when you will incorporate oral fluid testing into your program.

Once there are approved labs available, employers will be allowed to choose between oral fluid testing and urine testing for DOT drug collections. Most employers may find it best to combine the use of both testing methods. Each employer will be required to determine the circumstances in which each testing method will be used. Employers must choose the type of collection you will use initially for all testing reasons, and this will need to be clearly communicated as a standing order to your collectors and any clinics that you utilize. Of course, you will need to include these changes in your testing policies and communicate the policies to your employees.

See more information

DOT Random Testing

Click the link below to see the full chart of percentages for your annual random testing rates.

**The 2024 annual random testing rates for all DOT Agencies will remain the same as 2023

Random Testing Rates

Drug & Alcohol History Checks – Electronic Signatures Not Allowed

As a TPA, we continue to receive DOT drug and alcohol history checks for processing that include employee electronic signatures, with many indicating they are verified signatures, and some with script fonts for signatures. We understand your need to streamline all of the documents that are required for new hires. We’ve reached out to DOT numerous times regarding electronic signatures on the drug and alcohol histories and we have confirmed that wet signatures are still required for this document.

DOT still does not allow electronic signatures on the drug and alcohol history checks for any of the DOT agencies. Please keep this in mind as you update your new hire processes.

Sign up to receive text reminders about important updates. This may include random reminders, query updates, etc.

 

Random Testing Rates

2024 DOT Random Testing Rates

The following chart outlines the annual minimum drug and alcohol random testing rates
established within DOT Agencies for 2024.
DOT Agency
2024 Random Drug Testing Rate
2024 Random Alcohol Testing Rate
Federal Motor Carrier Safety Administration
[FMCSA]

The random rates did not change for 2024.  Because the random rates did not change, FMCSA is not required to publish a notice in the Federal Register.  The rate last changed in 2020.

50%

 10%
Federal Aviation Administration
[FAA]

2024 Random Rate Federal Register Notice

2024 Federal Register Notice – Correction

25%

10%
Federal Railroad Administration
[FRA]

2024 Random Rate Federal Register Notice

25% – Covered Service

10% – Covered Service
25% – Maintenance of Way 10% – Maintenance of Way
50% – Mechanical 25% – Mechanical
Federal Transit Administration
[FTA]

2024 Random Rate Federal Register Notice

50%

10%
Pipeline & Hazardous Materials Safety Administration
[PHMSA]

2024 Random Rate Federal Register Notice

25%

N/A

NOTE: Employers (and C/TPAs) subject to more than one DOT Agency drug and alcohol testing rule may continue to combine covered employees into a single random selection pool.

USCG covered employees may be combined with DOT covered employees in drug testing pools even though the USCG is now part of the Department of Homeland Security.

Source: (https://www.transportation.gov/odapc/random-testing-rates) Friday, December 29, 2023
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truck drivers

Pre-employment Investigations for Drug and Alcohol Program Violations

Beginning January 6, 2023, a pre-employment Clearinghouse query will satisfy the requirement to investigate a prospective driver’s previous drug and alcohol program violations, as set forth in 49 CFR 391.23(e)(4) and 382.413(b).

Employers of CDL drivers are required to conduct background investigations before hiring a driver. This process includes determining if the driver has violated the drug and alcohol regulations of any Department of Transportation (DOT) mode within the past three years (see 49 CFR  391.23(e)(1)-(3) and 382.413(a)). Currently, this requires employers or their designated consortia/third-party administrators (C/TPAs) to conduct both electronic queries in the Clearinghouse and manual inquiries with previous employers to meet the three-year time frame.

Beginning January 6, 2023, when three years of violation data is stored in the Clearinghouse, prospective employers must conduct a pre-employment query of the Clearinghouse, as set forth in § 382.701(a), to comply with the inquiry requirement in §§ 382.413(b) and 391.23(e)(4), as it pertains to FMCSA-regulated employers. Inquiries not conducted under § 382.701(a) will not satisfy these inquiry requirements.

NOTE: The Clearinghouse contains only information about drivers employed by FMCSA-regulated employers. If a prospective employee was employed by an employer regulated by a DOT agency other than FMCSA (such as the Federal Railroad Administration, Federal Transit Administration, Federal Aviation Administration, etc.) during the three-year time frame, prospective employers will still be required to directly request drug and alcohol violation information from those DOT-regulated employers in accordance with 391.23(e)(4)(ii) and 382.413(c), since this information is not reported to the Clearinghouse

Annual query requirements have not changed.

Employers of CDL drivers must conduct a query in the Clearinghouse at least once a year for each CDL driver they employ (see § 382.701(b)). This annual query requirement applies on a rolling 12-month basis, which means that if you conducted your last annual queries in December 2021, it is time to conduct the next round of annual queries.

Employers must obtain general consent from CDL drivers they employ before conducting limited queries in the Clearinghouse to view these drivers’ information (you can download a sample limited query consent form)
.

Are you up-to-date on your annual queries?

Log in to the Clearinghouse and visit your Query History page to see if your annual queries are due. For instructions on conducting annual queries, download the How to Conduct a Limited Query job aid.

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COVID-19 Vaccination and Testing ETS

The ETS on Vaccination and Testing was officially filed in the Office of the Federal Register on November 4, 2021, and it became effective when it was published on November 5, 2021. Written comments on any aspect of the ETS must be submitted by December 6, 2021 in Docket number OSHA-2021-0007. Written comments on the information collection determination as described in V.K. of the ETS preamble [2021-23643] must be submitted by January 4, 2022 in Docket number OSHA-2021-0008.

Find information on the COVID-19 Healthcare ETS or on Coronavirus Disease (COVID-19).

About the Standard

Implementation

Reposted from https://www.osha.gov/

Adult use cannabis and the workplace

New York Labor Law 201-D

This document is intended to address some of the most common situations or questions in the workplace related to adult-use cannabis and the Marijuana Regulation and Taxation Act (“MRTA”). This document does not address the medical use of cannabis. For further assistance with New York Labor Law and the MRTA, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

DISCRIMINATION PROHIBITED

The MRTA amended Section 201-D of the New York Labor Law to clarify that cannabis used in accordance with New York State law is a legal consumable product. As such, employers are prohibited from discriminating against employees based on the employee’s use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property.

PERMITTED EMPLOYER ACTIONS

The MRTA amended New York Labor Law Section 201- D by adding a new subsection 4-a, which provides that employers MAY take employment action or prohibit employee conduct where:

  • An employer is/was required to take such action by state or federal statute, regulation, or ordinance, or other state or federal governmental mandate
  • The employer would be in violation of federal law
  • The employer would lose a federal contract or federal funding
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties
  • The employee, while working, manifests specific articulable symptoms of cannabis impairment that interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws

FREQUENTLY ASKED QUESTIONS:

HUMAN RESOURCES ISSUES / ACTION AGAINST EMPLOYEES

Is illegal cannabis use protected?

Only the legal use of cannabis by adults over the age of 21 under New York State law is protected. The illegal use, sale, or transportation of cannabis is not protected by Section 201-D of the Labor Law. For more information on what is now considered legal use, please visit New York State’s Office of Cannabis Management’s website at cannabis.ny.gov or consult with an appropriate professional.

Can an employer take action against an employee for using cannabis on the job?

An employer is not prohibited from taking employment action against an employee if the employee is impaired by cannabis while working (including where the employer has not adopted an explicit policy prohibiting use), meaning the employee manifests specific articulable symptoms of impairment that:

  • Decrease or lessen the performance of their duties or tasks
  • Interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health laws

What are articulable symptoms of impairment?

There is no dispositive and complete list of symptoms of impairment. Rather, articulable symptoms of impairment are objectively observable indications that the employee’s performance of the duties of the position of their position are decreased or lessened. Employers are cautioned that such articulable symptoms may also be an indication that an employee has a disability protected by federal and state law (e.g., the NYS Human Rights Law), even if such disability or condition is unknown to the employer. Employers should consult with appropriate professionals regarding applicable local, state, and federal laws that prohibit disability discrimination.

For example, the operation of heavy machinery in an unsafe and reckless manner may be considered an articulable symptom of impairment.

What cannot be cited by an employer as articulable symptoms of impairment?

Observable signs of use that do not indicate impairment on their own cannot be cited as an articulable symptom of impairment. Only symptoms that provide objectively observable indications that the employee’s performance of the essential duties or tasks of their position are decreased or lessened may be cited. However, employers are not prohibited from disciplinary action against employees who are using cannabis during work hours or using employer property.

Can employers use drug testing as a basis for an articulable symptom of impairment?

No, a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment. (For more information, see section Drug Testing below).

Can I fire an employee for having a noticeable odor of cannabis?

The smell of cannabis, on its own, is not evidence of articulable symptoms of impairment under Labor Law Section 201-D.

Do I have to fire an employee for using cannabis on the job or for cannabis impairment on the job?

No, employers are permitted to take action under such circumstances but are not required to do so.

Do I have to discipline, report, or fire an employee under age 21 who uses cannabis on the job?

No, there is no legal requirement to do so in the Labor Law.

Are employers required to hire an employee back who was previously terminated for now legal cannabis use or a related expunged crime?

No, the law does not require employers to rehire former employees who were terminated due to cannabis use prior to the legalization of cannabis.

What if my employee works remotely in another state that uses different laws?

The MRTA and New York Labor Law Section 201-D only apply to employees employed within the State of New York.

Can a person use cannabis if they are on leave?

For purposes of the labor law, employers cannot prohibit the use of cannabis while employees are on leave unless the employer is permitted to do so pursuant to the provisions of New York Labor Law Section 201-D(4-a).

USE AT WORK OR DURING WORK HOURS

Can employers prohibit use of cannabis during meal or break periods?

Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite.

Can employers prohibit use of cannabis during periods in which an employee is on-call?

Yes, employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.”

Can employers prohibit cannabis possession at work?

Yes, employers may prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property (e.g., lockers, desks, etc.).

For remote employees, can employers prohibit use in the “worksite”?

The Department of Labor does not consider an employee’s private residence being used for remote work a “worksite” within the meaning of Labor Law Section 201- D. However, an employer may take action if an employee is exhibiting articulable symptoms of impairment during work hours as described above and may institute a general policy prohibiting use during working hours.

Can employers prohibit use when the employee uses a company vehicle?

Yes, employers are permitted to prohibit use in company vehicles or on the employer’s property, even after regular business hours or work shifts.

WORKPLACE POLICIES

Can employers prohibit the use of cannabis outside of the workplace?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a).

Can employers require that employees promise or agree not to use cannabis as a condition of employment?

No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.

Are existing policies prohibiting use permitted?

No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law.

APPLICABILITY

Are both public and private employees covered by the MRTA and New York Labor Law Section 201-D?

Yes, they apply to all public (state and local government) and private employers in New York State, regardless of size, industry, or occupation.

Which employees aren’t covered by the MRTA and New York Labor Law Section 201-D?

The MRTA and New York Labor Law Section 201-D do not apply to individuals who are not employees (e.g., students who are not employees, independent contractors, individuals working out of familial obligation, volunteers) or provide any consumer protections. Employees under the age of 21 are also not covered, as cannabis use by individuals under the age of 21 is prohibited by New York Law and not subject to the present protections.

Do the MRTA and New York Labor Law Section 201-D depend on immigration or citizenship status?

No, the MRTA and New York Labor Law Section 201- D apply to all employees regardless of immigration or citizenship status.

Do the MRTA and New York Labor Law Section 201-D apply to students?

Yes, the MRTA and New York Labor Law Section 201-D apply to all employees, regardless of their educational status. However, students who are not “employees” are not covered by this law.

DRUG TESTING OF EMPLOYEES

Can an employer test for cannabis?

No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.

Can an employer drug test an employee if federal law allows for drug testing?

No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)

1 The federal government, as an employer, is not covered by this law.

Reposted from NY Department of Labor

Employers and C/TPAs webinar

Watch a recording of the live Q&A session for employers and C/TPAs

 

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for employers and consortia/third-party administrators (C/TPAs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • Conducting queries and requesting driver consent
  • Reporting CDL driver violations
  • Common user issues and how to address them
  • Reminders about the January 5, 2021 deadline for employers to have conducted annual queries for all currently-employed CDL drivers.

 

CDL drivers webinar

Watch a recording of the live Q&A session for CDL drivers

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for drivers who hold commercial driver’s licenses (CDLs) or commercial learner’s permits (CLPs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • Responding to query consent requests
  • Which violations are reported to the Clearinghouse
  • Common user issues and how to address them

MROs and SAPs webinar

Watch a recording of the live Q&A session for MROs and SAPs

In December 2020, FMCSA hosted a series of question and answer webinar sessions for Clearinghouse users, including two sessions for medical review officers (MROs) and substance abuse professionals (SAPs).

Watch a recording of one of these sessions.

The sessions included presented material and live Q&A time on the following topics:

  • Clearinghouse registration
  • How MROs report CDL driver violations
  • How SAPs report CDL driver return-to-duty information
  • Common user issues and how to address them

The webinar also includes important reminders, such as:

  • MROs entering driver CDL information, not social security numbers, and what to do if the CDL information is not included in the CCF.
  • Which RTD information SAPs report to the Clearinghouse (date of initial assessment and date of determined eligibility for RTD testing), and which steps take place outside the Clearinghouse.
  • How both MROs and SAPs must keep their qualifications current to continue using the Clearinghouse.

 

Three-Month Waiver in Response to the Economic Consequences of the COVID-19 Public Health Emergency

To Relieve Employers of Commercial Motor Vehicle Drivers Subject to 49 CFR Part 382 from Certain Pre-Employment Testing Requirements

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA grants a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. This action responds to the President’s Executive Order No. 13924, Regulatory Relief to Support Economic Recovery, issued on May 19, 2020, related to the economic consequences of the Coronavirus Disease 2019 (COVID-19) public health emergency.

DATES: This waiver is effective June 5, 2020, and ends on September 30, 2020.

FOR FURTHER INFORMATION CONTACT:  Mr. David J. Yessen, Chief of the Compliance Division, Office of Enforcement and Compliance, 202-366-1812, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers from any of the Federal Motor Carrier Safety Regulations issued under Chapter 313 of Title 49 of the United States Code or 49 U.S.C. § 31136, to a person(s) seeking regulatory relief (49 U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination that the waiver is in the public interest and that it is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver. Individual waivers may be granted for a specific unique event for a period up to three months. TEA-21 authorizes the Secretary to grant waivers without requesting public comment, and without providing public notice.

The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial motor vehicle programs and safety regulations.

Background
On May 19, 2020, the President issued Executive Order No. 13924 setting forth “the policy of the United States to combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” Among other things, the Executive Order directed executive branch agencies to “address this economic emergency by … waiving [] or providing exemptions from regulations and other requirements that may inhibit economic recovery consistent with applicable law and with protection of the public health and safety ….” This waiver responds to the unique circumstances of certain pre-employment testing requirements arising from the economic emergency identified in the President’s Executive Order, as further described below.

Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions, as defined in 49 CFR 382.107, resulting in their removal from the random pool for controlled substances and alcohol testing for a period greater than 30 days. As employers begin calling these drivers back to work, they will incur the cost of conducting pre-employment controlled substances testing before using these drivers to perform safety-sensitive functions, as required by 49 CFR 382.301. The administrative and cost burdens of pre-employment testing for furloughed drivers outside the random testing pool for more than 30 days falls on motor carrier employers at the very time they are attempting to return to expanded levels of operation. The Agency finds that temporary regulatory relief from this burden will aid in the economic recovery of motor carriers impacted by the COVID-19 public health emergency, without negatively impacting safety. FMCSA also concludes that this waiver will aid in the Nation’s overall economic recovery by enabling the efficient resumption of the transportation of people and cargo throughout the United States.

FMCSA’s Determination and Regulatory Provisions Waived
Consistent with the statutory requirements for waivers, FMCSA has determined that it is in the public interest to issue a waiver, until September 30, 2020, limited in scope and circumstances, that is likely to achieve a level of safety equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Currently, pursuant to 49 CFR 382.301(a), prior to the first time a driver performs safety-sensitive functions for an employer, the driver must undergo pre-employment testing for controlled substances and the employer must receive a verified negative controlled substances test result for that driver from a medical review officer or a consortium/third party administrator.  This requirement also applies each time a driver returns to work after a furlough, lay-off, or other period of unemployment when the driver does not continue to be subject to random controlled substances testing in accordance with 49 CFR 382.305.

Section 382.301(b) provides an exception allowing an employer to forgo administration of a pre-employment test if the driver has participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 30 days; and, if while participating in that program, the driver either: (i) was tested for controlled substances within the past 6 months or (ii) participated in the random controlled substances testing program for the previous 12 months. In addition, under the exception, the employer would be required to ensure that no prior employer of the driver has records of a violation of 49 CFR part 382 or the controlled substances use rule of another DOT agency within the previous six months.

As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.

This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.

Public Interest
FMCSA finds that the granting of this waiver is in the public interest because it will facilitate the efficient return of furloughed commercial motor vehicle drivers to the workforce, allowing them to resume critical transportation functions performed by passenger and property motor carriers. In addition, this waiver will reduce the regulatory burden on employers and furloughed drivers subject to the pre-employment testing requirement.

Safety Equivalency 
Due to the limited scope of this waiver and the ample precautions that remain in place, FMCSA has determined that the waiver is likely to achieve a level of safety that is equivalent to the level of safety that would be obtained absent the waiver. The waiver of a particular regulation should not be looked at in isolation but rather as part of the whole of all regulations governing the safety of drivers. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). For example, in these circumstances, it is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).

Section 382.301(b) sets forth the following conditions a driver must meet to be excepted from pre-employment testing:

(1) The driver has participated in a controlled substances testing program that meets the requirements of this part within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of [part 382] or the controlled substances use rule of another DOT agency within the previous six months.
FMCSA finds that extending the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b)(1), from 30 to 90 days, will not negatively impact safety. The existing requirement that an employer relying on the § 382.301(b) exception must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months remains in effect. Moreover, employers must conduct a pre-employment query of the Clearinghouse for returning drivers, as required by § 382.701(a). The Clearinghouse, which became operational on January 6, 2020, enables employers to identify drivers, including furloughed drivers, who have committed an FMCSA controlled substances and alcohol testing program violation that renders them ineligible to perform safety-sensitive functions. Such drivers are prohibited from performing safety-sensitive functions until completing the return-to-duty process, as set forth in 49 CFR part 40, subpart O. The Clearinghouse provides employers with a useful new tool for identifying drivers’ drug and alcohol program violations that did not exist at the time the Agency enacted the 30-day limit for the exception in § 382.301(b). Further, employers must continue to complete a background investigation on returning or prospective drivers’ controlled substances and alcohol testing history with all DOT-regulated employers that employed the driver within the previous 3 years, in accordance with 49 CFR §§ 40.25, 382.413, and 391.23.

FMCSA believes that the current regulatory framework, as well as the additional measures listed below under Terms, Conditions, and Restrictions of the Waiver, taken collectively, provide the assurance needed to meet the legal standard that granting the waiver is likely to achieve an “equivalent level of safety.” Therefore, FMCSA has determined that extending from 30 to 90 days the period for which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b) during the period of the waiver is likely to achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained in the absence of the waiver.

Unique Circumstances
The COVID-19 public health emergency has led to unprecedented impacts to the Nation’s economy. Various measures employed to reduce the spread of COVID-19, including social distancing, and stay-at-home and business closure orders issued by State and local governments, have significantly decreased demand for motor carrier services, particularly from passenger carriers. In response to the COVID-19 public health emergency, many employers have imposed layoffs, furloughs, or otherwise temporarily removed employees from performing safety-sensitive functions. FMCSA finds that the circumstances surrounding this waiver are unique due to the urgent need to remove regulatory barriers to allow the efficient resumption of motor carrier operations.

For the reasons noted, FMCSA grants a three-month waiver as provided above, subject to the terms, conditions, and restrictions below.

Terms, Conditions, and Restrictions of the Waiver
This waiver covers employers of drivers subject to the requirements of 49 CFR part 382 for the period beginning at 12:01 a.m. (ET) on June 5, 2020, and continuing through 11:59 p.m. on September 30, 2020.

(1)    Employers must verify that the driver participated in the controlled substances testing specified in § 382.301(b)(2)(i) and (ii) and had no recorded violations of another DOT agency’s controlled substances use regulations within the previous 6 months;
(2)    Employers must comply with the Clearinghouse pre-employment query requirement set forth in 49 CFR 382.701(a);
(3)    Employers must not allow a driver to perform any safety-sensitive function if the results of a Clearinghouse pre-employment query demonstrate that the driver is prohibited from doing so, in accordance with 49 CFR 382.701(d);
(4)    Employers must complete the investigations and inquiries required by 49 CFR §§ 40.25, 382.413, and 391.23;
(5)    Accident Notification. Each employer must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry). Notification shall be by email to MCPSD@DOT.GOV. The notification must specify that the driver was operating under the terms of this waiver and must include the following information:

i.    Date of the accident;
ii.    City or town, and State in which the accident occurred, or closest to the accident scene;
iii.    Driver’s name and license number;
iv.    Vehicle number and State license number;
v.    Number of individuals suffering physical injury;
vi.    Number of fatalities;
vii.    The police-reported cause of the accident (if available at time of the report); and
viii.    Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations; and

(6)    FMCSA reserves the right to revoke this waiver due to drivers’ involvement in accidents or employers’ failure to comply with the terms of this waiver.

Jim Mullen
Deputy Administrator

Original Source: Federal Motor Carrier Safety Administration
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ODAPC and CBD Notice

DOT OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE NOTICE

The Agricultural Improvement Act of 2018, Pub. L. 115-334, (Farm Bill) removed hemp from the definition of marijuana under the Controlled Substances Act. Under the Farm Bill, hemp-derived products containing a concentration of up to 0.3% tetrahydrocannabinol (THC) are not controlled substances. THC is the primary psychoactive component of marijuana. Any product, including “Cannabidiol” (CBD) products, with a concentration of more than 0.3% THC remains classified as marijuana, a Schedule I drug under the Controlled Substances Act.

We have had inquiries about whether the Department of Transportation-regulated safety-sensitive employees can use CBD products. Safety-sensitive employees who are subject to drug testing specified under 49 CFR part 40 (Part 40) include: pilots, school bus drivers, truck drivers, train engineers, transit vehicle operators, aircraft maintenance personnel, fire-armed transit security personnel, ship captains, and pipeline emergency response personnel, among others.

It is important for all employers and safety-sensitive employees to know:

  1. The Department of Transportation requires testing for marijuana and not CBD.
  2. The labeling of many CBD products may be misleading because the products could contain higher levels of THC than what the product label states. The Food and Drug Administration (FDA) does not currently certify the levels of THC in CBD products, so there is no Federal oversight to ensure that the labels are accurate. The FDA has cautioned the public that: “Consumers should beware purchasing and using any [CBD] products.” The FDA has stated: “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.”* Also, the FDA has issued several warning letters to companies because their products contained more CBD than indicated on the product label. **i
  3. The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. Furthermore, CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result. Therefore, Medical Review Officers will verify a drug test confirmed at the appropriate cutoffs as positive, even if an employee claims they only used a CBD product.

It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana. Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This policy and compliance

 

i* What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD: The FDA is working to answer questions about the science, safety, and quality of products containing cannabis and cannabis-derived compounds, particularly CBD.” – https://www.fda.gov/consumers/consumer-updates/what-you-need-know-and-what-were-working-find-out-about-products-containing-cannabis-or-cannabis

** https://www.fda.gov/news-events/public-health-focus/warning-letters-and-test-results-cannabidiol-related-products

notice is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this policy and compliance notice is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations. Safety-sensitive employees must continue to comply with the underlying regulatory requirements for drug testing, specified at 49 CFR part 40.

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